Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Bernardino County, J. Michael Welch, Judge, Super. Ct. No. FSB039998.
NARES, Acting P. J.
A jury convicted Juan Devon Kinney of four counts of second degree commercial burglary (Pen. Code, § 459: counts 1, 3, 8 and 10) and found true an allegation as to all of these counts that Kinney previously had been convicted of three serious or violent felonies (strikes) for purposes of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).
All further statutory references are to the Penal Code.
The third amended information alleged Kinney was convicted in Ohio of (1) robbery in January 1979, (2) aggravated robbery in January 1990, and (3) another aggravated robbery in January 1990.
The court denied Kinney's motion to strike his prior strikes and sentenced him under the Three Strikes law to an indeterminate term of 100 years to life, consisting of 25 years to life for the count 1 commercial burglary conviction, plus a consecutive 25-year-to-life term for each of the three other commercial burglary convictions (counts 3, 8 and 10). This appeal followed.
Kinney contends the judgment must be reversed because (1) the court prejudicially erred in failing to sua sponte instruct the jury under CALJIC No. 2.52 that his flight was insufficient to establish his guilt, (2) the court abused its discretion in refusing to strike any of Kinney's prior strike offenses because he is outside the spirit of the Three Strikes law, and (3) his sentence of 100 years to life constitutes cruel and unusual punishment under the state and federal Constitutions. We reject these contentions and affirm the judgment.
FACTUAL BACKGROUND
A. People's Case
1. Count 1: Burglary of Seventh Day Adventist Church
Antonio Aguilar was the pastor of the Seventh Day Adventist Church on Mountain View Avenue in San Bernardino. When he arrived at the church on May 17, 2003, the doors to the church were broken, things in his office were in disarray, and office equipment and other items were missing. About $500 was missing from the safe, which had been moved and forced open. Three latent fingerprints were lifted from the scene: one on the door of the safe, one from the side of the safe, and another on the glass top of the pastor's desk. A fingerprint examiner determined the latent prints belonged to Kinney.
2. Count 3: Burglary of YWCA
Janell Karabatsos was an interim director at the YWCA located on North Sierra Way in San Bernardino. On May 22, 2003, at about 2:00 a.m., YWCA's security company called Karabatsos because the alarm had gone off. The police were in the YWCA when she arrived. A window in the YWCA pool area had been removed. Some new computers, monitors, LCD projectors, and other items were taken during the break-in. A forensic specialist lifted nine or 10 latent fingerprints from the window in the YWCA pool area. A fingerprint examiner determined the prints belonged to Kinney.
3. Count 8: Burglary of First Christian Church
On June 2, 2003, the First Christian Church on North Arrowhead Avenue in San Bernardino was ransacked and several rooms were forcibly opened. Robert Martinez, who did maintenance work for the church, had left and secured the church at noon. When he returned at 1:00 p.m., the door to the minister's office was broken and a Black male who was not supposed to be there was standing in the hallway. The man had a stroller and a garbage can on the stroller that was full of items. He asked Martinez, who was afraid, to help him roll the stroller and garbage can out of the church. Many items were missing from the church. Martinez identified items found in the stroller and garbage can that belonged to the church, such as a keyboard, radios, and karaoke machines. When the man turned around, Martinez ran back inside the church and called the police.
At about 1:30 p.m., San Bernardino Police Officer Travis Walker responded to the burglary call at First Christian Church. Officer Walker saw Kinney walking away from the rear of the church pushing a baby stroller and a gray trash can on wheels, and carrying a duffel bag. He followed Kinney in his unmarked car until the sheriff's helicopter arrived. Officer Walker, who was wearing plain clothes, then got out of his car and attempted to contact Kinney. Officer Walker identified himself as a police officer by showing Kinney his badge. When Kinney saw a marked police car arrive at the scene, he turned, left the baby stroller, trash can and duffle bag, and fled. Officer Walker yelled at Kinney, identifying himself as a police officer and ordering Kinney to stop, but Kinney continued to run and jump over fences. Officer Walker caught Kinney, and they began fighting. Kinney turned and ran away again. As Officer Walker chased him, Kinney placed his right hand into his waistband of his sweat pants. Fearing that Kinney was going to draw a weapon, Officer Walker dropped to his knees, slid toward the corner of a house for cover, and pointed his service revolver at Kinney. Kinney brought his hand out of his waistband and pointed his finger at Officer Walker, simulating a gun. Officer Walker reholstered his weapon and began chasing Kinney. As Officer Walker came around the corner of a house, Kinney swung a piece of lumber at him, hitting him in the hand and back of the head. Officer Walker continued to chase Kinney and eventually tackled him as he was picking up a large rock. Another police officer arrived and helped Officer Walker handcuff Kinney. Officer Walker sought medical treatment and learned from a doctor that his hand was fractured.
4. Count 10: Burglary of Barberena Professional Services
On May 27, 2003, Elsa Barberena, the owner of Barberena Professional Services on West Fifth Street in San Bernardino, arrived at her business. As she walked toward her office, Barberena noticed the copier was flipped over, the bars on the window had been pried open, and the window was broken. The fax machine and a painting were gone, and the petty cash and two coin collections had been taken from a safety deposit box, which was broken. Barberena called the police. A forensic specialist lifted a latent fingerprint off a piece of broken glass at the point of entry. A fingerprint examiner determined that the print belonged to Kinney.
5. Kinney's admissions
San Bernardino Police Detective William Rogers was assigned to the burglary cases. He contacted Kinney in early June 2003. After he was advised of his rights, Kinney admitted that he took items out of the First Christian Church, the burglary was part of a burglary ring, and he was working for a person that was having him burglarize churches, businesses and residences in the downtown San Bernardino area. Kinney said he had been involved in the burglary of an air conditioning shop, which Detective Rogers determined was BLM Heating and Air based on the police report of the burglary. Kinney also admitted involvement in the May 2003 burglary of the Tabernacle Church in San Bernardino. He made a similar admission regarding the May 2003 burglary of the Seventh Day Adventist Church. Kinney described the leader of the burglary ring as a heavy-set, mixed-race man called "Papa Smurf," who selected the sites for the burglaries. Papa Smurf or another man named Danny would drop Kinney off to commit the burglaries. Kinney told Detective Rogers the stolen property could be found at a certain address on Mountain View Avenue where Papa Smurf lived. Detective Rogers went to that address and found property that had been stolen during the burglaries at the Tabernacle Church, BLM Heating and Air, and the Seventh Day Adventist Church.
Kinney was charged with the BLM Heating and Air burglary in count 5 of the amended information, but (as discussed, ante) the jury could not reach a verdict as to this count.
Kinney was charged with the Tabernacle Church burglary in count 6 of the amended information, but (as noted, ante) the jury could not reach a verdict as to this count.
As noted, ante, Kinney was charged with the Seventh Day Adventist Church burglary in count 1 of the amended information, and the jury convicted Kinney as to that count.
Kinney agreed to do a "show and tell," where an accused voluntarily goes with police officers and identifies locations where he committed crimes. Kinney pointed out a residence on North Mountain View that he and an associate had recently burglarized. He described how they entered the residence and took stolen property back to the associate's residence.
Kinney also directed the officers to the BLM Heating and Air business on North Mountain View and indicated he burglarized that business. Kinney also directed the officers to the YWCA on North Sierra Way and described breaking into that building and taking three Dell computers. Kinney took the officers to the Methodist Church on North Arrowhead Avenue and described how he and an associate broke into the church and took a bass guitar and a sound system. He also took them to a residence on North Pershing and described forcing open a window and stealing a television and another electronic device.
B. The Defense
Kinney testified that on June 2, 2003, at around 9:30 a.m., he rode to Seccombe Lake park with a Sunday bicycle group to ride around and play games. After a few hours, he left the lake with a female member of the group, whose name he did not remember, to go get ice cream. After they got ice cream, as they were riding toward the woman's house, they stopped to see what was going on with a group of people down the street. The group was moving a number of items, including a baby stroller and a garbage can. They were "rumbling" through the items in the middle of the street. A van arrived and screeched to a stop. Officer Walker, who did not identify himself, got out of the van, came toward Kinney and grabbed him. They pushed and struggled with each other. They tripped over a fence, and Kinney got away and started to run. Eventually, Kinney started to think that the person might be a police officer, so he submitted. Office Walker tried to punch him in the face, but missed and hit him in the shoulder. Office Walker again tried to punch him in the face, but missed and hit a building, and they fought some more. Another officer arrived and helped Officer Walker to handcuff Kinney. Other officers arrived, and Kinney was punched and kicked. Kinney did not hit Officer Walker with a piece of wood or swing it at him. Kinney was taken to the police station.
Detective Rogers spoke to Kinney at the station, and Kinney said he had not done anything wrong. The detective showed him three or four photographs of people, and Kinney said he did not know them. Detective Rogers mentioned Papa Smurf, and Kinney said he did not know him. Kinney continued to deny any knowledge of or involvement in the burglaries.
C. Rebuttal
The tapes and transcripts of Kinney's interview with Detective Rogers and the show-and-tell interview were admitted into evidence, and the tapes were played for the jury.
The preliminary hearing testimony of LaTonya Ross was read to the jury. Ross testified that on June 2, 2003, as she was sitting on her front porch near the intersection of 10th Street and Mountain View, she saw Kinney in front of her house pulling a stroller and a trash can. A person in plain clothes pulled up in a van, got out and told Kinney he was a police officer. The officer had a badge on a chain around his neck, and told Kinney to "freeze." Kinney started running, and hit the police officer with a piece of wood during the struggle between them.
DISCUSSION
I. CALJIC NO. 2.52
Kinney first contends the court prejudicially erred in failing to sua sponte instruct the jury under CALJIC No. 2.52 that his flight was insufficient to establish his guilt. We conclude the court erred in failing to sua sponte instruct the jury under CALJIC No. 2.52, but that the error was not prejudicial and thus does not require reversal of the judgment.
A. Applicable Legal Principles
The principles governing a trial court's duty to instruct a jury sua sponte are well established. "It is settled that, even in the absence of a request, a trial court must instruct on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury's understanding of the case. [Citations.]" (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) "'The trial court functions . . . as the jury's guide to the law. This role requires that the court fully instruct the jury on the law applicable to each particular case.' [Citation.] 'It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence.' [Citation.]" (People v. Eilers (1991) 231 Cal.App.3d 288, 292.)
Section 1127c provides that "[i]n any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine."
"In general, an instruction advising the jury that evidence of flight alone is insufficient to establish guilt but may be considered with other proven facts in determining guilt 'is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.' [Citation.]" (People v. Roybal (1998) 19 Cal.4th 481, 517.)
As applicable here, CALJIC No. 2.52 provides: "The flight of a person immediately after the commission of a crime, or after he is accused of a crime, is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide."
B. Analysis
We first conclude the court erred by failing to sua sponte instruct the jury under CALJIC No. 2.52 that Kinney's flight from the scene of the burglary of the First Christian Church was not sufficient in itself to establish his guilt. The People presented the testimony of Officer Walker, who stated that when he arrived at the scene, he yelled at Kinney, identified himself as a police officer, and ordered Kinney to stop, but Kinney ran away and jumped over a fence. The People also presented the preliminary hearing testimony of LaTonya Ross, who testified that as she was sitting on her front porch near the intersection of 10th Street and Mountain View, she saw Kinney in front of her house pulling a stroller and a trash can. She also testified that a person in plain clothes pulled up in a van, got out, and told Kinney he was a police officer. The officer had a badge on a chain around his neck and told Kinney to "freeze," and Kinney started running.
During closing arguments, the prosecutor highlighted this evidence, implying that Kinney's flight from the scene at the First Christian Church indicated his guilt. Based on the foregoing record, we conclude the court had a duty to sua sponte instruct the jury under CALJIC No. 2.52.
However, we reject Kinney's contention that under the applicable harmless error test announced in People v. Watson (1956) 46 Cal.2d 818, it is reasonably probable that, absent the court's instructional error, the jury would have been unable to find him guilty of this burglary charge. The evidence of Kinney's guilt was overwhelming. Robert Martinez, the maintenance employee who worked for the church, testified that he secured the church before he left at noon, and when he returned at 1:00 p.m., the door to the minister's office was broken and a Black male who was not supposed to be there was standing in the hallway. Martinez also testified that the man had a stroller and a garbage can on the stroller that was full of items that belonged to the church. Officer Walker testified he saw Kinney walking away from the rear of the church pushing a baby stroller and a gray trash can on wheels, and (as discussed, ante) when he identified himself as a police officer and ordered Kinney to stop, Kinney ran away. Any jury could reasonably interpret Kinney's act of running away under such circumstances as showing a consciousness of guilt. The corroborating preliminary hearing testimony of eyewitness LaTonya Ross (discussed, ante), which was read to the jury, also showed Kinney's guilt. In addition, the People presented evidence that Kinney admitted his guilt to Detective Rogers after Kinney was advised of his rights. We conclude the court's instructional error was harmless under the Watson standard of prejudice.
Under the Watson test, the trial court's judgment may be overturned only if "it is reasonably probable that a result more favorable to the [defendant] would have been reached in the absence of the error." (People v. Watson, supra, 46 Cal.2d at p. 836.)
II. REFUSAL TO STRIKE THE PRIOR STRIKES
Kinney next contends the court abused its discretion in refusing to strike any of his strike priors because he was outside the spirit of the Three Strikes law. We reject this contention.
A. Background
At sentencing, defense counsel argued that the court should strike "enough strikes . . . to allow him not to be sentenced under the Three Strikes law to the terms of 25 years to life." The court denied this request.
B. Applicable Law
Section 1385, subdivision (a) (hereafter section 1385(a)) provides in part that a trial court "may, either of [its] own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal must be set forth in an order entered upon the minutes."
In People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), the California Supreme Court held that section 1385(a) permits a court acting on its own motion to strike prior felony conviction allegations in cases brought under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12). (Romero, supra, 13 Cal.4th at pp. 529-530.) The Romero court emphasized that "[a] court's discretion to strike prior felony conviction allegations in furtherance of justice is limited. Its exercise must proceed in strict compliance with section 1385(a), and is subject to review for abuse." (Romero, supra, 13 Cal.4th at p. 530.) The statement of reasons required by section 1385(a) "'is not merely directory, and neither trial nor appellate courts have authority to disregard the requirement. It is not enough that on review the reporter's transcript may show the trial court's motivation; the minutes must reflect the reason "so that all may know why this great power was exercised."' [Citations.]" (Romero, supra, 13 Cal.4th at p. 531, italics omitted.)
Although the Legislature has not defined the phrase "in furtherance of justice" contained in section 1385(a), the California Supreme Court has held that this language requires a court to consider both the constitutional rights of the defendant and the interests of society represented by the People in determining whether to strike a prior felony conviction allegation. (Romero, supra, 13 Cal.4th at p. 530.)
In People v. Williams (1998) 17 Cal.4th 148, 161, our state Supreme Court further defined the standard for dismissing a strike "in furtherance of justice" by requiring that the defendant be deemed "outside" the "spirit" of the Three Strikes law before a strike is dismissed: "We therefore believe that, in ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, 'in furtherance of justice' pursuant to . . . section 1385(a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (Italics added.)
In People v. Carmony (2004) 33 Cal.4th 367 (Carmony), the California Supreme Court held a trial court's decision not to dismiss a prior conviction allegation under section 1385 is reviewed under "the deferential abuse of discretion standard." (Carmony, at p. 371.) Carmony explained that when reviewing a decision under that standard, an appellate court is guided "by two fundamental precepts. First, '"[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review."' [Citation.] Second, a '"decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.'"' [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at pp. 376- 377.)
The Carmony court also stressed that in determining whether a trial court acted "irrationally or arbitrarily in refusing to [dismiss] a prior conviction allegation," the reviewing court must consider the refusal in the context of legal principles and policies regarding the particular law under which the discretionary exercise of authority was sought. (Carmony, supra, 33 Cal.4th at p. 377.) In Carmony, as here, the Three Strikes law was the pertinent law for this inquiry. (Carmony, at p. 377.)
In reviewing the Three Strikes law, the Supreme Court in Carmony reiterated its observation in Romero that the law was "'intended to restrict courts' discretion in sentencing repeat offenders.' [Citation.]" (Carmony, supra, 33 Cal.4th at p. 377.) It also repeated the requirement set out in People v. Williams, supra, 17 Cal.4th 148, that a trial court "'must consider whether, in light of the nature and circumstances of [the defendant's] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies,'" before exercising its discretion to dismiss a prior felony conviction allegation. (Carmony, supra, 33 Cal.4th at p. 377, italics added.)
Carmony further explained that because a trial court's adherence to the provisions of the Three Strikes law creates a strong presumption the trial court was not abusing its discretion in refusing to dismiss a prior conviction allegation for purposes of sentencing under that scheme, "a trial court will only abuse its discretion in failing to [dismiss] a prior felony conviction allegation in limited circumstances[, such as] where the trial court was not 'aware of its discretion' to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation, or where] 'the sentencing norms [established by the Three Strikes law may, as a matter of law,] produce[] an "arbitrary, capricious or patently absurd" result' under the specific facts of a particular case. [Citation.]" (Carmony, supra, 33 Cal.4th at p. 378.)
C. Analysis
Here, Kinney was charged with a series of burglaries and was convicted of four of them. During sentencing, the court indicated it was aware of its discretion under section 1385, it had read the probation report, it was familiar with the facts of the case, and it had "thought about this case a lot." The court noted Kinney's recorded pretrial admissions regarding the robberies he had committed on a bus in Ohio.
The court also noted Kinney's criminal record as set forth in the probation report, showing he had been arrested for aggravated robbery in 1976 and 1978. The first prosecution resulted in a petty theft conviction, and the second resulted in a conviction of theft, as a felony. The court further noted that Kinney had served time in prison and had previously been convicted in Ohio of two counts of aggravated robbery. The third amended information in the present case alleged Kinney had suffered three prior strike convictions in Hamilton County, Ohio: (1) robbery in January 1979, (2) aggravated robbery in January 1990, and (3) another aggravated robbery in January 1990. The jury in this matter found true these allegations.
Based on the foregoing record, the court found that Kinney posed a "serious danger to society" and was "the kind of person that . . . the Three Strike[s] law was designed for." We conclude the court's findings are solidly supported by the record, and the court did not abuse its discretion.
III. CRUEL AND UNUSUAL PUNISHMENT
Last, Kinney contends his sentence of 100 years to life under the Three Strikes law constitutes cruel and unusual punishment under the state and federal Constitutions. This contention is unavailing.
A. California Law Claim
1. Applicable law
Sections 17 and 24 of article I of the California Constitution set forth the same prohibition as that set forth in the Eighth Amendment. Article I, section 17 provides: "Cruel or unusual punishment may not be inflicted or excessive fines imposed." Section 24 of that article mandates that California courts interpret the California cruel or unusual punishment prohibition in a manner consistent with the federal Constitution.
The California Supreme Court has emphasized that a defendant must overcome a "considerable burden" in challenging a penalty on the ground it constitutes cruel or unusual punishment under the California Constitution. (People v. Wingo (1975) 14 Cal.3d 169, 174 (Wingo); see also People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630.) Our high court has stated that "[t]he doctrine of separation of powers is firmly entrenched in the law of California, and a court should not lightly encroach on matters which are uniquely in the domain of the Legislature. Perhaps foremost among these are the definition of crime and the determination of punishment. [Citations.]" (Wingo, supra, 14 Cal.3d at p. 174; see also People v. Dillon (1983) 34 Cal.3d 441, 477 (Dillon).)
Our high state court explained in In re Lynch (1972) 8 Cal.3d 410 (Lynch) the function of the judiciary in enforcing the constitutional prohibition against cruel or unusual punishment: "[L]egislative authority remains ultimately circumscribed by the constitutional provision forbidding the infliction of cruel or unusual punishment, adopted by the people of this state as an integral part of our Declaration of Rights. It is the difficult but imperative task of the judicial branch, as coequal guardian of the Constitution, to condemn any violation of that prohibition. As we concluded in People v. Anderson (1972) 6 Cal.3d 628, 640, 'The Legislature is thus accorded the broadest discretion possible in enacting penal statutes and in specifying punishment for crime, but the final judgment as to whether the punishment it decrees exceeds constitutional limits is a judicial function.' [Citations.]" (Lynch, supra, 8 Cal.3d at p. 414; see also Dillon, supra, 34 Cal.3d at pp. 477-478.)
In Dillon, the California Supreme Court reaffirmed the rule it adopted in Lynch that "a statutory punishment may violate the constitutional prohibition not only if it is inflicted by a cruel or unusual method, but also if it is grossly disproportionate to the offense for which it is imposed." (Dillon, supra, 34 Cal.3d at p. 478, citing Lynch, supra, 8 Cal.3d at pp. 423-424, fn. omitted.)
Our high state court has adopted three techniques (the Lynch techniques) that California courts have used to determine whether a particular sentence is so grossly disproportionate to the offense for which it is imposed that it constitutes cruel and unusual punishment within the meaning of the Eighth Amendment. (Dillon, supra, 34 Cal.3d at p. 479 ["In each such decision the court used certain 'techniques' identified in Lynch[, supra, 8 Cal.3d at pages 425-429,] to aid in determining proportionality"].)
The first Lynch technique is an examination of the "nature of the offense and/or the offender, with particular regard to the degree of danger both present to society." (Lynch, supra, 8 Cal.3d at p. 425; see also Dillon, supra, 34 Cal.3d at p. 479.) In conducting the inquiry into the "nature of the offense," the courts "are to consider not only the offense in the abstract" (i.e., as defined by the Legislature), but also "'the facts of the crime in question' [citation.]—(i.e., the totality of the circumstances surrounding the commission of the offense in the case at bar, including such factors as its motive, the way it was committed, the extent of the defendant's involvement, and the consequences of his acts." (Dillon, supra, 34 Cal.3d at p. 479.) The related inquiry into the "nature of the offender" is focused "on the particular person before the court, and asks whether the punishment is grossly disproportionate to the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind." (Ibid.)
Under the second Lynch technique, the courts "compare the challenged penalty with the punishments prescribed in the same jurisdiction for different offenses which, by the same test, must be deemed more serious." (Lynch, supra, 8 Cal.3d at p. 426.)
The last Lynch technique employed by California courts is a comparison of the challenged punishment with punishments for the same offense in other jurisdictions. (Lynch, supra, 8 Cal.3d at p. 436.)
Ultimately, the test to be applied in California for determining whether a particular punishment violates the California constitutional prohibition against cruel or unusual punishment is whether, "although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.'" (Dillon, supra, 34 Cal.3d at p. 478, quoting Lynch, supra, 8 Cal.3d at p. 424, italics added.) It is permissible to base the determination of whether the punishment constitutes cruel and unusual punishment solely on the nature of the current offenses and the offender. (People v. Ayon (1996) 46 Cal.App.4th 385, 399; People v. Young (1992) 11 Cal.App.4th 1299, 1308-1311, disapproved on another point in People v. Deloza (1998) 18 Cal.4th 585, 593, 600, fn. 1); People v. Weddle (1991) 1 Cal.App.4th 1190, 1198-1200.)
B. Analysis
Here, applying the first Lynch technique by examining the "nature of the offense and/or the offender, with particular regard to the degree of danger both present to society" (Lynch, supra, 8 Cal.3d at p. 425), we conclude that Kinney has failed to meet his burden of showing that the nature of the offenses or the offender reveals that his punishment is cruel or unusual. Kinney asserts he was 52 years of age when the court sentenced him in this matter in June 2006. The record shows that his first arrest for aggravated robbery occurred in 1976. He suffered his first strike prior—for second degree robbery--in 1979, and suffered his other two strike priors--for aggravated robbery—in 1990. He served time in prison before he committed the aggravated robberies. Kinney committed the four burglaries at issue here in 2003, showing that his criminal career has spanned a period of almost 25 years. He is a recidivist who has continued to commit felonies despite reaching the age of 50 years, and in spite of a prison commitment and multiple opportunities to become law abiding.
In People v. Ayon, supra, 46 Cal.App.4th at page 399, we explained that "[r]ecidivism in the commission of multiple felonies poses a manifest danger to society justifying the imposition of longer sentences for subsequent offenses." On the record presented, we cannot conclude that Kinney's sentence in this matter is so disproportionate to the crimes for which it is imposed that it shocks the conscience and offends fundamental notions of human dignity. (See Dillon, supra, 34 Cal.3d at p. 478.) We conclude that Kinney's sentence, which is the functional equivalent of life without possibility of parole, does not constitute cruel and unusual punishment under state law given his current offenses and his recidivist criminal history.
C. Federal Law Claim
1. Applicable law
The Eighth Amendment to the United States Constitution, which applies to the states under the Fourteenth Amendment, provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (Italics added; see Harmelin v. Michigan (1991) 501 U.S. 957, 962 (Harmelin).)
Under the Eighth Amendment, challenges to the length of a sentence are rarely granted. (Solem v. Helm (1983) 463 U.S. 277, 289-290 (Solem) ["Outside the context of capital punishment, successful challenges to the proportionality of particular sentences [will be] exceedingly rare"].) The United States Supreme Court has stated that reviewing courts "should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals." (Id. at p. 290, fn. omitted.)
In a five-to-four decision in Solem, supra, 463 U.S. at page 290, the United States Supreme Court held that "a criminal sentence must be proportionate to the crime for which the defendant has been convicted." In the Supreme Court's more recent decision in Harmelin, supra, 501 U.S. 957, a divided court retreated from Solem and rejected the notion that the Eighth Amendment requires strict proportionality between a sentence and the offense for which it is imposed. In Harmelin, Justice Scalia, joined by Chief Justice Rehnquist, delivered the lead opinion for the court and concluded that "Solem was simply wrong; the Eighth Amendment contains no proportionality guarantee." (Harmelin, supra, 501 U.S. at p. 965.)
In the concurring plurality opinion in Harmelin, Justice Kennedy, joined by Justices O'Connor and Souter, concluded that although the cruel and unusual punishments clause "encompasses a narrow proportionality principle," the Eighth Amendment "does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are 'grossly disproportionate' to the crime." (Harmelin, supra, 501 U.S. at p. 1001, citing Solem, supra, 463 U.S. at pp. 288, 303.) One commentator has stated that the Harmelin decision "undeniably curtails the authority of appellate courts to conduct proportionality review" and "requires courts to pay great deference to legislative judgments concerning both the goals of criminal punishment and the length of sentences necessary to attain those goals." (Harvard Law Review Assn., Cruel and Unusual Punishments Clause—Proportionality in Sentencing: Harmelin v. Michigan (1991) 105 Harv. L.Rev. 245, 251.)
In Ewing v. California (2003) 538 U.S. 11, the United States Supreme Court upheld California's Three Strikes law against a claim that a 25-year-to-life sentence constituted cruel and unusual punishment when imposed under that law against a defendant who had suffered prior serious felony convictions of robbery and residential burglary, and whose current conviction was a "wobbler" grand theft properly treated as a felony. In her lead opinion, Justice O'Connor stated that although the sentence imposed in Ewing was "a long one," it was not grossly disproportionate, and it "reflects a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated." (Id. at p. 30.)
D. Analysis
In light of Kinney's history of criminal recidivism and the unacceptable threat to public safety that his repeated felonious behavior poses, we conclude that his sentence is not grossly disproportionate, and thus does not violate the Eighth Amendment prohibition of cruel and unusual punishment. Accordingly, we affirm the judgment.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, J., McDONALD, J.